R v Harvey

[1997] QCA 103

IN THE COURT OF APPEAL

[1997] QCA 103

SUPREME COURT OF QUEENSLAND

C.A. No. 280 of 1996

Brisbane

BeforeMacrossan CJ
Moynihan J

Cullinane J

[R v. Harvey]

THE QUEEN

v.

LEE ROBERT HARVEY

Appellant

REASONS FOR JUDGMENT - THE CHIEF JUSTICE

Judgment delivered 2 May 1997

In the reasons prepared by Moynihan J and Cullinane J, there is a sufficient reference to the general factual background and I am able to confine my references only to those facts necessary to explain my own conclusions.

I do not need to add to what Moynihan J and Cullinane J have said concerning the ground that complains of the trial judge's failure to discharge the jury when, during the course of their deliberations, they indicated that they were having difficulty in reaching verdicts. This was not an uncommon situation that the judge had to confront and he dealt with it in a way which cannot properly be criticised.

The more substantial matters argued related to an alleged inconsistency of verdicts, issues concerned with corroboration and a claim that the guilty verdict was unsafe and unsatisfactory. To an extent these matters and certain other relevant issues are interrelated. The first two I mention have, in the circumstances of this case, an obvious bearing upon the third. It will become important to give attention to the terms of the summing-up as well as to the evidence in coming to a conclusion upon the unsafe and unsatisfactory verdict submission.

The appellant gave evidence at the trial and called other evidence below. A feature to be mentioned is that the respective versions given by the complainant and the appellant although conflicting were in each case on their face quite credible accounts and each had some claims to consistency with other facts of which there was evidence in the case. When they gave their evidence impressions that the jury received would have been of great importance for their conclusions in the case.

The complainant, it was accepted, had a considerable amount to drink on the day and evening of the relevant events. She described herself as being "fairly intoxicated". There appears to be little doubt that she was a willing participant in some relatively mild intimacies that occurred between the appellant and herself when they were in and around the dance floor area of the nightclub. There was conflict in the evidence concerning the way in which they walked towards the restricted access exit door and through it into the rear corridor areas shown on Exhibit 25. The complainant said that she was being held by the shoulders and in effect forced towards and through the exit door but other evidence suggests that she went there in a much more co-operative manner in close proximity with the appellant and perhaps holding hands. This conflict would have been something for the jury to consider but it was not, on its own, necessarily a matter of major importance. The picture the complainant presented on the whole of her evidence was that she was not originally averse to the appellant's company.

The complainant's evidence of the exact location within the exit corridors of the occurrence of the three separate episodes charged lacked precision and in some respect also lacked consistency with other facts established, particularly the location of the abandoned tampon. It became a question for consideration how much should be made of this. The jury may have thought it necessary to make allowance for the extent of the complainant's intoxication, the probably confusing relationship of the different sections of the exit corridor with its several control doors and the possible effect upon her observation resulting from the aggressive and, as she described it, unwelcome actions of the appellant. The jury would have had to decide whether to accept as correct the essential facts, although not all of the details, as she later claimed to recollect and describe them.

There was evidence that the jury might have thought to be of considerable significance in the descriptions of her upset state given by others when the episodes concluded and she found her way out of the corridor and back into the public area. The complainant's upset condition at that time formed one category of evidence capable of constituting corroboration that the trial judge placed before the jury for their consideration.

It was common to both accounts that there were physical intimacies of some kind at one or more points within the back corridor before the two entered either a store room or invalid toilet at the last place where they were together but an important question was whether any of those acts were consensual. It is true that the complainant said that her tampon was removed by the appellant at a point which she seemed to describe as being not far on from the first exit door from the nightclub and that sexual penetration occurred at two points within the corridor even before they entered a room at the end of their passage through the rear areas of the nightclub. The tampon was subsequently found near the third location which was at a point beyond the two further doors after the first exit door from the club. The third episode at the final location was described by the complainant in some of its aspects as being more prolonged. She said that the appellant completely removed her shirt and bra and she was pushed into positions and turned around with sexual penetration again occurring there before the appellant, apparently objecting to her complaints, abused her and left her.

The appellant's evidence spoke of passing with the complainant through two further doors after first entering the rear corridor and of some consensual intimacies but no sexual penetration occurring at any point before they entered the invalid toilet and the complainant commenced to remove her own jeans and told him that she was menstruating. He said there was no further sexual intimacy and he then left her. His account insisted that no sexual intercourse occurred at any stage and whatever did take place was with her willing participation. The appellant was employed in the nightclub and it is worth remarking that on his evidence he did not then leave the club but went back into the public areas and talked with other persons.

The complainant had some relatively minor signs of injury upon her person but nothing that pointed unequivocally to sexual penetration. There was no sign of semen found in or upon her person or within the corridor areas.

One question argued was how were the jury reasonably entitled to conclude that non- consensual intercourse occurred at the third location charged while bringing in not guilty verdicts in respect of the first two. The contention advanced for the appellant that this outcome involved what was in effect a miscarriage of justice must be considered.

Although the complainant asserted that penetration, which on her evidence was non- consensual, occurred at the first two points in the corridor, it might be that in some ways she could be regarded as describing the first occasion in a less positive fashion. As to the first occasion she said in evidence in-chief that the appellant "tried" to penetrate her and then she had to be asked directly and in rather leading fashion by prosecuting counsel whether penetration had occurred. The jury may have thought that the considerable difference in heights of the complainant and the appellant would have presented something of an obstacle in their standing positions at the first point.

The jury in their conclusions may have been influenced by the fact that the appellant's evidence pointed to an unwillingness on his part to engage in sexual intercourse in what was a passageway area which other persons might be expected to use.

The third location the complainant referred to offered greater privacy and the appellant, according to her, took more time and as has already been mentioned, devoted what might be regarded as greater efforts to achieve his objective. According to her he removed a certain amount of her clothing and stayed with her until, on both versions, on his own decision he left her. Their presence together at what she described as the third location was the one which was closest to the time when she reappeared within the nightclub in a distressed condition and conversely, furthest from the point when, on some of the evidence, she had passed willingly through the first exit door following some mild intimacies in and around the dance floor. It is possible that the jury found themselves persuaded that non-consensual intercourse should safely be found in respect of the third location but decided to give the appellant the benefit of some doubt which they may have felt in respect of the first two locations. However, it is clear that their not guilty verdicts on the first two counts involves their deciding not to act upon her claim that it occurred at those first two points also.

There was one particular matter which counsel for the respondent relied on in the hearing of the appeal to justify the distinction made in the jury's verdicts, but reference to it introduces difficulties of a different kind. Evidence had been led below from the complainant's mother, without objection from defence counsel, the effect of which was that early in the morning after the complainant had gone home from the nightclub following the alleged offences, the complainant, in a brief exchange with her mother, said that a man had taken her into a room that was very dark and raped her. On one strict view, only the third location would be regarded as a "room". Taken literally, this would have restricted the commission of the offence to what is being referred to as the third location and would provide some basis on which the jury might legitimately have drawn a distinction amongst the three episodes charged. The difficulty is that the judge in his summing-up in directing the jury in respect of the topic of fresh complaint, referred the jury to conversations involving the complainant and other persons at the nightclub before she went home, but he did not refer to the alleged conversation with the mother which counsel for the respondent now points to in support of the verdict on the third count. Perhaps the judge did not refer to the alleged conversation with the mother because he considered that in view of the complainant's earlier conversations with other persons and her movements and opportunity to speak, it did not meet the criteria for recent complaint. If this is so, it is difficult to see any basis on which the conversation claimed to have occurred with the mother could properly have been admitted into evidence. Unless justified as recent complaint, it would simply have been hearsay. It was nevertheless admitted without objection at the trial and no relevant request for redirection was asked for at the conclusion of the summing-up. No point was taken in respect of its admission into evidence on the hearing of the appeal. That is not necessarily the end of the matter, particularly because a contention is made that the verdict is unsafe. It is possible that if, after its admission, the judge did not think that the evidence qualified as a "recent complaint" he thought it safer not to give it any emphasis, even by mentioning it as something upon which the jury should not rely.

The present case is one where matters of credit as between the complainant and the appellant were particularly important and the jury had the benefit of seeing and hearing both of them as they gave their evidence. It is clear enough that there was evidence before the jury which would support a conclusion that the appellant had raped the complainant but a question remains whether this court should regard that conclusion as safe and satisfactory. The jury's verdicts do not unqualifiedly accept the complainant's evidence and do not involve a total rejection of the appellant's evidence on all central matters.

The discussion that has so far proceeded does not take into account the effect that the terms of the judge's summing-up might have had upon the jury's verdict. It is necessary to give some attention to the manner in which the judge directed the jury in respect of corroboration and recent complaint. He did this in terms which involved a general reference to the evidence capable of qualifying in these categories and he did not relate his directions to particular features of the case where it might be thought the jury would have benefited from further assistance.

The question of corroboration can be taken first. The location in which the tampon was found might be thought not to support and actually to contradict the version of the complainant that it was removed by the appellant at the first location in the corridor area. However, the judge did not explain to the jury that, on one approach, they might think that the location of the abandoned tampon contradicted part of the complainant's story or at least did not provide corroboration of it especially in respect of the first two charges. The judge did not, in short, analyse the circumstances in which the jury might feel free to think that the finding of the item in question did provide support to one or more and which of the three separate allegations on which the charges were based. If the jury concluded that the tampon had been removed only in the vicinity of the toilet or store area, that would undermine rather than support her credit in respect of the first two episodes she described or perhaps all three of them since in her evidence she was adhering to a claim that sexual intercourse occurred in all three locations.

The judge similarly did not explain to the jury how the injuries and the distressed condition could be used to corroborate the complainant's claims that the three separate offences occurred. It is true that in the circumstances of the present case there was some justification for allowing the jury to take all of the items of potential corroboration into account in a somewhat broader brush manner than might usually be permissible. R v. Berrill and Ors [1982] Qd.R 508 was a case where issues having some features in common with those involved in the present case arose. There, a complainant had been injured and received a black eye at a point in the course of her struggles when she said that she was being assaulted by a number of men in succession. The fact that there was a single continuing episode at one location was regarded as justifying the use of that injury as corroboration of the complainant's accusations against all of her assailants: see especially per Andrews SPJ at 517B. A similar approach was adopted in R v. Pountney 1989 Crim.LR 216 where different episodes were involved and the question whether evidence was capable of affording corroboration of a particular charge (a question for the judge) was firmly distinguished from the question whether it in fact did so (a matter to be weighed by the jury). The court at 217.1 indicated its view that it was incumbent on the judge to ensure that the jury had the competing tendencies of the potentially corroborative evidence in mind.

In this case the trial judge said nothing to indicate the limited extent to which the signs of physical injury subsequently detected upon the complainant might have supported her claims that non-consensual penetration had occurred. The judge did not draw the jury's attention to the possibility that the complainant's subsequently distressed state at the nightclub may have been due to some combination of the effects of alcohol and remorse following a wounding rejection at the hands of the appellant, that is to causes other than the occurrence of rape. There was evidence (although not uncontradicted) that the complainant may have felt compelled to offer some defensive explanation of her actions when she encountered the appellant some six months later at the Bank nightclub.

In short, the judge, in directing the jury to the aspects which were capable of providing corroboration did so without any explanation of the competing tendencies which might be detected in that evidence and so may have left the jury with the impression that if the so-called corroborative evidence was to be used at all it supported the complainant's evidence.

Somewhat similar observations might be made of the way in which the judge directed the jury on the fresh complaint evidence coming from the complainant herself and Mr McInnes and Ms Stolz. The judge explained how fresh complaint evidence could be used to support the credit of the complainant but he did not sufficiently direct the jury's attention to the limitations and reservations in the words said to have been used by the complainant here. The evidence of McInnes was that when the complainant presented herself back in the nightclub in an upset state she said to him that someone had "tried" to rape her adding, in a rather confused way, that she was "trying to be raped". This was said in the presence of Ms Stolz. The ordinary meaning of "tried" or "trying" in this context would be that rape had not occurred. Ms Stolz said that when the complainant separately spoke to her she said in what must be a reference to the appellant, that he kept taking her away, dragging her away from room to room because people kept coming in. She also said that she kept saying no, that she did not want to do "this", that she was not ready for "this", that she had just got out of being involved with someone else. The imprecision in all of this does not amount to a statement that sexual intercourse, let alone rape, had occurred. In dealing with the "fresh complaint" evidence the judge should have told the jury forcibly that they should confront the question whether if non-consensual sexual penetration had actually occurred, the complainant would have restricted her complaints in the way she did according to McInnes by referring to mere attempts, and in the case of Stolz, whether the complainant would not have gone further than using language indicative of sexual contact being attempted and advances being pressed. The jury's attention was directed to the language of her complaints as possibly supporting her credit depending upon the interpretation that the jury adopted, but the judge did not, in this context, add judicial authority to the proposition that on one available view the words of her "complaints" would undermine her claim that sexual penetration occurred. Although matters of interpretation can arise in "fresh complaint cases", c.f. R v. Saunders [1965] Qd.R 409, esp at 411 and 425-6 and R v. Sakail [1993] 1 Qd.R 312 esp at 321, there cannot be justification for leaving the question of interpretation to the jury in a case like the present as though, if a relevant interpretation were to be drawn at all from the equivocal words used, it was one which favoured only the complainant's version.

In respect of the subsequent exchange between the complainant and the appellant at the Bank nightclub in the presence of Mr Turier, the trial judge gave a direction to the jury which was very favourable to the appellant. He said that if the jury thought the complainant may, on that occasion, have said words to the effect, "I know this will go against me - I just wanted to be with someone", then they should find the appellant not guilty. Different views might be taken of the implications which might be drawn from those words in the circumstances of that encounter, but still it does seem fair to say that they were not words which a rape victim would be expected to utter to her assailant on encountering him six months later.

The real question for this court is not whether there was evidence which would support a conviction, but whether the case against the appellant was one where a reasonable jury could have been satisfied beyond reasonable doubt of the accused person's guilt. This is a question which the court must determine for itself, making an independent assessment of the evidence allowing for the advantage which the jury at the trial had of observing demeanour: Morris v. R (1987) 163 C.L.R. 454 and Chamberlain v. R (No. 2 ) (1984) 153 C.L.R.521 at 621.

The matters that have been discussed lead, in my view, to the conclusion that the guilty verdict should not be allowed to stand. The variations in the verdicts on the three counts with its implications for the credit of the complainant as the jury must have viewed it, the fact that the single guilty verdict followed directions on corroboration and alleged recent complaint which did not provide sufficiently helpful analyses of possibilities are particular features to be allowed for but it is the evidence overall which persuades that this is a case where there did not exist a safe basis for a guilty verdict. That being so, this is not a case where an order for a new trial should be made.

The appeal should be allowed and the conviction set aside. A judgment and verdict of acquittal should be entered.

REASONS FOR JUDGMENT - CULLINANE J.

DELIVERED THE TENTH DAY OF FEBRUARY, 1997

The appellant appeals against his conviction for rape. He had been tried in the District Court at Townsville on three counts of rape and was acquitted of the first two counts and convicted of the third.

Each count of rape involved the same complainant. On the complainant’s account each act occurred within a very short period of time whilst the two were in a part of a nightclub at Townsville but outside of where the public were admitted to. The first two acts of rape took place on the complainant’s account in a hallway with the appellant and the complainant standing on the first occasion and lying on the floor on the second. The offence of which the appellant was convicted took place in a room off the hallway again whilst the two were standing.

The appellant gave evidence and his account was of consensual sexual activity not involving sexual intercourse.

The relevant aspects of the evidence are set out in the judgment of Moynihan J.
The issues were penetration and consent.

There were a number of grounds of appeal but the only grounds pursued were firstly that the conviction of the appellant on the third count was inconsistent with the verdicts of acquittal on the first two counts and associated with this was the claim that the complainant’s evidence

involved such inconsistencies that the verdict was unsafe. Leave was given to amend the the jury’s consideration as capable of amounting to corroboration was left in respect of when some of that evidence was not capable of corroborating all counts and in particular count three.

There was a further ground of appeal that the learned trial Judge erred in failing to discharge the jury in circumstances where the jury had sent two separate notes to the effect that there was no way that they could reach a unanimous verdict. The particulars of this ground are set out at page iii of the record and the relevant events are summarised in the judgment of

Moynihan J.

No application was made to discharge the jury. His Honour gave the jury an admonition in terms of the judgment of the High Court in Black -v- The Queen (1993) 179 CLR 44 on the first occasion that the jury indicated that the jury could not reach agreement. At 9.30 p.m.

when the Court reconvened after a notification from the jury that no further progress had
been made, His Honour adjourned until the following morning telling the jury that no verdict
would be taken before 10 o’clock. It was at about 10 o’clock on the following morning that

the jury returned the verdicts already referred to.

The course followed by His Honour in my view was unremarkable and does not give any establish that the verdicts cannot stand together in the sense that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion. See R. -v- Anthony (1982) Qd.R. 284 at 289 and the authorities referred to there.

cause for concern. As I have said no application was made at any time on behalf of the
appellant to have the jury discharged. There is no substance in this ground which was not the
subject of any argument before us on behalf of the appellant.

In the present case the appellant and the complainant were at all relevant times alone and as will be apparent from what has been said their accounts sharply differ. The evidence raised the two issues of penetration and consent.

The complainant made a number of complaints to different persons and in differing terms.
On the day following the events, the complainant spoke to her mother to whom she said:

“Mum, I don’t want you to go funny on me or anything, but last night this man came up behind me, put his hands on my shoulders, took me into a room that was very dark and he raped me.”

As will be seen this complaint made no reference to the alleged rapes in the hallway and is expressed in terms which might be understood as conveying that the appellant took the complainant from the nightclub to the room where an act of rape occurred.

The jury in my view would have been entitled to place considerable reliance upon this evidence as being the complainant’s account of what happened to someone who she could have been expected to have been likely to frankly confide in.

It is of course impossible to know the basis upon which the jury arrived at the verdicts of acquittal on the first two counts and convicted on the third but it seems to me that the evidence of the complainant’s complaint to her mother provides a possible basis upon which the jury with justification could have done so. This is in my view sufficient to dispose of this ground of appeal. As to the associated ground namely that the jury ought to have entertained a reasonable doubt in the light of what were said to be many inconsistencies in the complainant’s evidence and that the conviction should be set aside on this ground, it is in my view not possible to reach the conclusion that such inconsistencies must necessarily have warranted the rejection of her evidence.

As to the remaining ground the learned trial Judge left three matters to the jury as capable of amounting to corroboration. He did not distinguish between the counts in doing so and must be understood as having left for the jury’s consideration such items in respect of all counts.

The three items of evidence were:-

(a)	The distressed condition of the complainant. No complaint is made by the appellant in relation to this.
(b)	The injuries sustained by the complainant. Specifically the complaint made is that whilst some of the injuries cannot on the evidence be related to any particular point in the chain of events, the injuries to the back of the head and the face were on the complainant’s account suffered in the course of the second act of rape and it is the appellant’s contention that this evidence is capable only of corroborating count two.
(c)	The evidence of the location of the tampon. Each account involves the removal of a tampon although at different locations and in different circumstances. The appellant contends that the finding of the tampon in the position disclosed by the evidence was inconsistent with the complainant’s account and consistent with the appellant’s

account and could not for this reason amount to corroboration. Further it was said that if it had been capable of amounting to corroboration it was capable of doing so only in relation to count one, the tampon having been, on her account, removed by the

appellant immediately prior to the first act of rape.

It seems to me that the appellant’s contentions in relation to these matters places the test of
corroboration in circumstances such as existed here too high.
The effect which evidence must have to be capable of amounting to corroboration
was explained in judgment of the High Court in The Queen -v- Doney (1990) 121 CLR 207

at p. 221:

“.... it is sufficient if it strengthens that evidence by confirming or tending to confirm
the accused’s involvements in the events as related by the accomplice.”

His Honour directed the jury that each offence must be considered separately and that the jury could return a different verdict on each count.

Here the events occurred within a very short time whilst the appellant and the complainant were away from the nightclub proper and in the course of conduct which could be regarded as amounting in effect to a single course of conduct.

So far as the tampon is concerned upon the complainant’s account its removal by the appellant was followed by the three acts of non-consensual sexual intercourse. There was some albeit somewhat inconclusive evidence from the complainant at page 20 of the Record in which she makes reference to the appellant having thrown a tampon and other evidence which suggested that prior to the finding of the tampon, members of the nightclub’s staff would have walked through the area. His Honour whose directions otherwise on the question of corroboration are not the subject of any complaint directed the jury’s attention as to the significance of the location of the tampon in relation to the competing accounts and drew the jury’s attention to the claim made on behalf of the appellant that the location tended to support his evidence.

In my view given the issues in this case His Honour did not err in allowing the jury to consider this as an item capable of amounting to corroboration in respect of each count. The location of the tampon and its consistency or otherwise with the appellant’s account and its suggested inconsistency with the complainant’s account are matters which the jury undoubtedly were entitled to take into account in considering whether the evidence did amount to corroboration and indeed in relation to the complainant’s credit generally. Whilst its possible corroborative effect may not have been great in my view His Honour was not in error in allowing this evidence to be considered by the jury as capable of amounting to corroboration in respect of each count. It was evidence which was capable of supporting the complainant’s evidence encompassing the three acts of rape.

I am also of the view that His Honour was correct in allowing the evidence of the injuries complainant and three others were charged with attempted rape. The issue was consent. It was impossible for the complainant to identify any of the persons who assaulted her. She testified that in the course of resisting of sexual intercourse with either the third or fourth of the six persons who assaulted her, she received blows to the face or eye and there was evidence from other witnesses that after the relevant events she had a black eye.

including the injuries to the head and face for the consideration of the jury as being capable
of amounting to corroboration on each count.

This evidence was left to the jury as evidence capable of corroboration in respect of each count against each accused person as being capable of corroborating testimony that she did not consent to intercourse with any of the accused and that in the course of resisting the attacks upon her she received the injury to her eye.

I am of the view that such a conclusion is more readily justified in a case such as the present involving on the complainant’s account three acts of non-consensual intercourse with the same person where the events took place within a brief period and might be regarded as constituting a single course of conduct.

I would dismiss the appeal.